Lisa D. La Horey

The plaintiff, Suntower Developments Limited, brought a motion for a certificate of pending litigation (CPL) over property owned by the defendants, Studios of America Corporation and Studios of America Limited Partnership.

Suntower claimed a constructive trust based on unjust enrichment and alleged wrongful conduct, stemming from an agreement where Suntower was to receive a share of cash flow for its development work, not a proprietary interest.

The defendants opposed, arguing the contract was a juristic reason precluding unjust enrichment and that monetary damages were an adequate remedy.

The court dismissed the motion, finding no triable issue for a constructive trust claim, as the contract was a juristic reason for any enrichment, and the plaintiff had no reasonable expectation of a proprietary interest.

The court also found no triable issue for a constructive trust based on wrongful conduct, as the defendants' ownership of the property did not result from any breach of obligation.

The equities also favored dismissing the CPL.

The Peel District School Board (PDSB) brought a motion to dismiss the plaintiffs' action for delay, approximately eight years after its commencement.

The action had not progressed beyond the pleadings stage.

The court applied the test for dismissal for delay, finding the delay inordinate and inexcusable.

Despite the plaintiffs' assertion that the delay was due to their former lawyer's misconduct, they failed to provide direct evidence to support this claim or rebut the presumption of prejudice.

The court found that the delay created a substantial risk that a fair trial would not be possible, and consequently, granted the PDSB's motion, dismissing the action.

The defendant brought a motion for particulars regarding the third party defence in an action for constructive dismissal.

The defendant sought details of communications alleged by the third party in his defence, arguing they were necessary to plead a reply.

The third party argued the request was an attempt to discover evidence prematurely.

The court granted the motion, finding that the particulars were not within the defendant's knowledge and were necessary for the defendant to frame its reply to the third party defence.

The plaintiffs brought a motion for a certificate of pending litigation (CPL) over a property acquired by a partnership for development.

The parties disagreed on the partnership agreement's interpretation after a zoning application was refused.

The court found a triable issue regarding an interest in land but declined to exercise its discretion to grant the CPL, noting the property was not unique, was acquired for investment, and damages would be an adequate remedy.

The motion was dismissed with costs awarded to the defendants.

The plaintiffs in a medical malpractice action brought a motion to extend the time to set down the action for trial and for a new timetable.

The defendants opposed the motion, arguing the plaintiffs failed to provide an acceptable explanation for the delay and relying on the presumption of prejudice.

The court applied the two-part test from Faris v Eftimovski, finding that the plaintiffs provided an adequate explanation for the delay in the context of seeking further discovery and expert reports.

The court also found that the defendants would suffer no non-compensable prejudice, as clinical records were available, discoveries had been conducted, and expert reports exchanged.

The motion was granted, and a new timetable was established.

The defendant employer brought a motion to transfer the plaintiff employee's wrongful dismissal action to Small Claims Court.

The plaintiff's statement of claim sought $173,000 in damages arising from an alleged constructive dismissal related to the employer's COVID-19 vaccination policy.

The defendant argued that the plaintiff had mitigated his damages and that the remaining claims lacked an 'air of reality', bringing the true value within the Small Claims Court limit of $35,000.

The court dismissed the motion, holding that it could not conduct a preliminary merits test to reduce the claim's value and deprive the plaintiff of his chosen forum.

The defendant lawyer brought a motion to strike out the plaintiffs' statement of claim alleging professional negligence in his representation of the plaintiff dentist during a regulatory discipline proceeding.

The defendant argued the claim was incapable of proof due to the absolute prohibition on admitting discipline proceeding records in civil actions under s. 36(3) of the Regulated Health Professions Act.

The court dismissed the motion, finding the defendant required leave to bring the motion due to delay and having taken a fresh step by filing a statement of defence, and denied leave.

The court further noted that even if leave were granted, the claim would not be struck as the plaintiffs might prove their case using other admissible evidence, such as patient records and admissions in the pleadings.

The defendant daughter brought a motion to discharge certificates of pending litigation (CPL) registered against two properties by the plaintiff father.

The father had obtained the CPL on an ex parte motion, claiming beneficial ownership of a condo registered in the daughter's name, the proceeds of which were allegedly used to purchase the properties.

The court found that while the father had a reasonable claim to an interest in land, he failed to make full and fair disclosure of material facts on the ex parte motion, including the source of the down payment and a letter stating the funds were a gift.

Balancing the equities, including the non-disclosure and the availability of damages as a remedy, the court discharged the CPL without security.

The plaintiff brought an urgent, ex parte motion for a certificate of pending litigation (CPL) against a residential property.

The plaintiff alleged it had an agreement of purchase and sale after the sellers' real estate agent asked for an increased bid, which the plaintiff provided.

However, the sellers did not sign the plaintiff's offer and instead sold the property to another bidder.

The court dismissed the motion, finding that the plaintiff failed to establish a triable claim to an interest in land because no binding contract was ever formed between the parties.

The court also rejected the argument that alleged tortious conduct by the real estate agents could ground a claim to an interest in the land.

The plaintiffs brought a motion seeking leave to amend their statement of claim against Tarion Warranty Corporation and to add the Home Construction Regulatory Authority (HCRA) as a defendant.

The proposed amendments included new allegations regarding a 2007 provincial offences conviction, a 2016 refusal to register, and a 2019 notice of proposal.

The court granted the motion in part, allowing amendments that clarified existing claims or arose from the same factual matrix, but refusing amendments that introduced new, statute-barred causes of action or sought relief outside the court's jurisdiction.

The court also permitted the plaintiffs to add the HCRA as a defendant for a damages claim, but refused to allow a claim for a mandatory order against the regulator, holding that such relief must be sought by way of judicial review in the Divisional Court.

The plaintiff brought a motion for leave to add the Port Hope Police Services Board as a defendant and to amend his statement of claim.

The proposed amendments alleged that Port Hope Police provided an unredacted report to the Canadian Human Rights Commission, leading to the dismissal of his complaint, and that police were involved in his termination from employment.

The court dismissed the motion to add Port Hope Police, finding the proposed claims were an abuse of process as they sought to relitigate findings already made in previous Federal Court and wrongful dismissal proceedings.

Unopposed amendments to increase damages and add a Charter claim against the existing defendant were permitted.

The defendant brought a motion under Rule 25.11 to strike out portions of the plaintiff's Fresh as Amended Statement of Claim.

The plaintiff's claim alleged breach of contract and breach of the duty of good faith contractual performance following the termination of his exclusive service contract.

The defendant argued that certain paragraphs were scandalous, irrelevant, or pleaded evidence rather than material facts.

The court granted the motion in part, striking out allegations relating to the defendant's treatment of other contractors and the termination of another employee, finding them irrelevant and prejudicial to the fair trial of the action.

However, the court refused to strike out paragraphs pleading the precise words of conversations on the day the plaintiff was told to leave the building, finding them relevant to the allegations of malice and bad faith.

The plaintiffs brought a motion seeking leave to amend their statement of claim and to compel answers to questions refused during the examination for discovery of the defendant lawyer in a professional negligence action.

The court granted the amendment on consent.

Regarding the refusals, the court applied the principle of proportionality, ordering the defendants to answer a narrowed set of questions concerning why certain evidence was not introduced at the underlying trial, while dismissing requests that were overly broad, irrelevant, or disproportionate.

The plaintiff brought a motion to amend the statement of claim to substitute the wife of the defendant driver as a party defendant on the basis of misnomer, after discovering she was the registered owner of the vehicle involved in the accident.

The proposed defendant opposed the motion, arguing her vehicle was not involved and citing delay.

The court found the pleading clearly intended to sue the owner of the vehicle and that the factual dispute over which vehicle was involved could not be resolved on the motion.

The court granted the motion, finding no non-compensable prejudice to the proposed defendant.

The defendant brought a motion to compel the plaintiff to answer two refused questions during discovery and to produce environmental documents (Environmental Site Assessments and Risk Assessment Documents) related to alleged property contamination.

The defendant argued these documents were relevant to the pleaded issue of contamination in the Fresh as Amended Statement of Defence and Counterclaim.

The plaintiff argued the documents were not relevant or that sufficient documents had already been produced.

The court found the requested documents relevant to the issue of contamination and granted the defendant's motion, ordering production of the documents and re-attendance for discovery, with costs awarded to the defendant.

The plaintiffs brought a motion to prevent their action from being dismissed for delay under Rule 48.14(7) and to establish a timetable for the action.

The defendants opposed, arguing the five-year limitation period had passed and that they were awaiting additional documents.

The court found that the plaintiffs had provided an acceptable explanation for the delay, largely due to the defendants' refusal to provide discovery dates and their concerns about in-person discoveries during the pandemic.

The court determined that the defendants would suffer no non-compensable prejudice.

The motion was granted, a timetable was imposed, and no costs were awarded.

The plaintiff brought an urgent motion for a Certificate of Pending Litigation (CPL) on a property she had an Agreement of Purchase and Sale (APS) for, which the defendant was attempting to sell to a third party.

The transaction had failed to close due to disputes over extension requests.

The court considered the equitable factors for granting a CPL, including the uniqueness of the land, the plaintiff's intentions, the adequacy of damages as a remedy, and the plaintiff's diligence in prosecuting the claim.

The court found the plaintiff's evidence on uniqueness and intent vague and concluded that the plaintiff had not prosecuted the claim with reasonable diligence.

The motion for a CPL was dismissed, and the plaintiff's alternative request for payment of sale proceeds into court was also denied.

The defendant employer brought a motion to quash three Rule 39.03 summonses to witness served by the plaintiff employee in advance of a pending pleadings motion.

The plaintiff sought to strike out portions of the defendant's amended pleading alleging after-acquired cause.

The court found that the extensive list of documents requested in the summonses amounted to a fishing expedition and an attempt to initiate early discovery.

The motion was granted and the summonses were quashed as an abuse of process.

The defendant brought a motion for leave to file a late jury notice in an action regarding a disability income policy.

The delay in filing was attributed to the inadvertence of the defendant's counsel over several months.

The court applied the test from Proper v Nikore, finding that the delay was not unconscionable as it was not tactical, and that the plaintiff would not suffer prejudice from the late filing.

The motion was granted with no costs awarded.

The plaintiff brought a motion under Rule 30.06 for a further and better affidavit of documents, seeking financial, operational, and accounting records from the defendants.

The underlying action involved claims of partnership dissolution, breach of contract, and intellectual property infringement.

The defendants opposed the motion, arguing the documents were irrelevant, not proven to exist, and disproportionate to produce at this stage.

The court found the requested documents were relevant to both liability and damages, and that the plaintiff had provided sufficient evidence of their existence.

The court rejected the defendants' proportionality arguments, noting they failed to provide evidence of undue burden, and granted the motion with costs.